Don Feder on freedom of speech

by Don Feder

(Author’s Note: I was invited by the UMass Republicans to give this address at a forum at the University of Massachusetts at Amherst on March 11. Due to an organized and highly disruptive demonstration by a mob of socialists, “peace activists,” and homosexuals, I was unable to deliver the speech. More on this in a future commentary.)

When asked if fascism could ever come to America, Huey Long (the Depression-era governor of Louisiana) replied, “Sure, only here they’ll call it anti-fascism.”

Hate-crimes laws are fascism in the guise of protecting minorities. They’re fascism in crime-prevention drag. They’re fascism in the name of combating bigotry and hatred.

Truly, we live in a blessed land. What I’m doing here, this evening – expressing my ideas, not those of the government, not those of the media, not those of the powerful, but my own opinions – is unheard of in much of the world, even at the dawn of the 21st century.

In the 18th century, at the time of the American Revolution, Thomas Jefferson noted that in most of Europe, the views of the king were the views of the kingdom. To express a contrary opinion was to risk life and limb.

In America, freedom of expression and belief includes the freedom to believe things that are manifestly wrong – the freedom to believe things that are dangerous, the freedom to go against public opinion.

Excepting laws against libel and slander, we have the freedom to say things that are hurtful and even hateful. We have the freedom to say things that enrage those who would suppress speech in the name of tolerance.

Supreme Court Justice Oliver Wendell Holmes put it rightly in 1919, when he wrote in his dissenting opinion in Abrams v. United States: “The best test of truth is the power of the thought to get itself accepted in the competition of the market.” Holmes added, “I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”

In the 1943 Supreme Court case of West Virginia State Board of Education v. Barnette, the majority opinion explained: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

What is a hate crime?

According to a federal law enacted in 1990, a hate crime is one in which there is “manifest evidence of prejudice based on race, religion, disability, sexual orientation, or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter, forcible rape, aggravated assault, simple assault, intimidation, arson, and the destruction, damage and vandalism of property.” This statute requires the FBI to compile hate-crimes statistics, and nothing more.

Federal involvement here is governed by a 1969 law which allows authorities to prosecute a crime that was motivated by the victim’s “race, color, religion or national origin,” and then only if the offense involves interstate commerce or if the feds act to secure the victim’s rights to certain “federally protected activities” – such as voting, enrolling in a public school or traveling on a common carrier.

Lastly, a 1994 law changes federal sentencing guidelines to require enhanced sentences for hate crimes.

In 2007, there was an attempt to amend the law to add “gender, sexual orientation, gender identity or disability,” to the category of protected persons.

Additionally, under this legislation, the federal government would have been free to prosecute such crimes at its discretion, whether or not they interfered with a federally protected right or involved in interstate commerce.

Enhanced sentences for those convicted of such crimes would have included up to an additional 10 years in prison if the defendant “willfully causes bodily injury to any person or through the use of fire, a firearm or an explosive or incendiary device, attempts to cause bodily injury to any person.”

The “Local Law Enforcement Hate Crimes Act of 2007? was passed by Congress but, fortunately, vetoed by then-President Bush. Like The Terminator, it’ll be back.

Are hate crimes a serious problem? According to Sen. Edward Kennedy, they are “domestic terrorism” (this from a man who’s never seemed overly concerned about foreign terrorism).

In sponsoring his own legislation, our Senator-for-life informed us that there is a national epidemic of hate crimes against homosexuals and the transgendered.

Ladies and gentlemen, there is more of a national epidemic of dengue fever in this country, than there is a national epidemic of hate crimes of all kinds.

According to the FBI Uniform Crime Reports, in 2007, the last year for which statistics are available, there were 16,929 murders and 855,856 cases of aggravated assault in the United States.

By comparison, there were 7,624 hate-crime incidents, involving 9,006 victims. Moreover, of all hate crimes, 32.4% were property crimes, such as vandalism.

Of “crimes against persons,” 47.4% were intimidation – in other words, words alone – and 31.1% were simple assault, where no weapon was involved and there was no serious injury. This would include pushing or almost any other physical contact. And so, the vast majority of hate crimes affecting persons (roughly 78%) involved only words or an assault in which there was no serious injury or weapon involved.

Of the rest, 20.6% were characterized as aggravated assault, defined by the FBI as “an unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury.”

Rounding out the hate-crime statistics, 0.2% (2/10ths of 1%) of hate crimes involved murders or forcible rape – of which there were 9 murders that year.

To put Senator Kennedy’s alleged epidemic in perspective, of all aggravated assaults in 2007, it’s estimated that .0013% (roughly 1/100th of 1%) were hate crimes. Of murders, .00053% (roughly 5/1000th of 1%) were hate crimes.

Your chances of being the victim of a serious hate crime are comparable to being struck twice by lighting and run over by a high-speed train while skate-boarding on a national holiday. There’s a greater chance of drowning in the backseat of Senator Kennedy’s car than becoming a hate-crime statistic.

Hate-crimes laws violate the 14th. Amendment’s Equal Protection Clause, in that they favor one class of victims over another. The same crimes are treated differently based on the victim’s group-identity and the perp’s motivation.

Thus, if a man is assaulted because of his race, his assailant will get one sentence.

If the same man is attacked in exactly the same way, with the same outcome, because of his political views, or because he has the misfortune of being a Yankees fan in Massachusetts, his assailant is treated more leniently. If something like the 2007 bill passes, that will also be true of what’s termed sexual identity and transgenderism.

At the conclusion of my remarks this evening, if you beat me, shoot me, stab me, or attempt to blow me up because of my views, you get one type of punishment. However, if you commit exactly the same offense against my person because I’m a Jew or a Caucasian, you are punished more severely.

Is that fair?

Yes, proponents of hate-crimes laws say, because you have attacked me for what I am. As the American Psychological Association ominously explains, a hate crime is “not only an attack on one’s physical self, but is also an attack on one’s very identity.”

This is identity-politics applied to the administration of justice. For the Left, an attack on a representative of a group (especially a group sanctified as a persecuted minority) is far more serious than an attack on an individual – because, in its worldview, groups count for more than individuals.

Thus, Matthew Shepard becomes far more important than the victims of Jeffrey Dahmer. Shepard’s killers “hated,” whereas Dahmer was merely hungry.

Along with “the attack on one’s very identity,” there’s a related argument. An attack on a member of group X is somehow an attack on all of X, and results in the intimidation of the entire class.

Let’s test the proposition. If you’re in a wheelchair and someone 500 miles away is attacked because they’re disabled are you intimidated? Angry, perhaps. But intimidated? Will the assault cause you to alter your behavior in any way? Doubtful.

Many of us – we’re called grownups – have reconciled ourselves to the fact that there will always be people who hate us because of the color of our skin, the way we pray, our ethnicity, etc.

Humanity being flawed and given to senseless hatred, that’s a sad reality. We can admit it and deal with it, or sit in a corner sulking about it and demanding that government do something. That something usually entails punishing thoughts or expression, as well as conduct.

Hate crimes are thought crimes.

If a perpetrator gets five years in prison for aggravated assault, but ten years for hating the person he assaults (if that person is a member of a protected class), clearly, the additional punishment is for his motivation – what he was thinking or believed when the crime took place, the thoughts behind the crime.

It’s an attempt to punish ideas – bad ideas, possibly reprehensible ideas, but thoughts, often accompanied by speech, nonetheless.

In hate crimes, motives are all-important, and motivation isn’t always what it seems.

Take the 1998 homicide of Matthew Shepard. Was Shepard murdered because he was a homosexual? Possibly. But it’s equally plausible that he died because his murderers wanted drug money, and Shepard (weighing in at 105 pounds) was an easy mark. According to a 2004 report by ABC’s “20/20,” that’s what many close to the case believe.

Thomas Jefferson declared: “The legislative powers of government reach to actions only, not to beliefs.”

There is a well-founded fear that hate crimes — which are, for the most part, based on actions and words — will eventually mutate into crimes based on words alone.

Witness the case of a group of Christians in Philadelphia who protested a gay pride event in October of 2004.

The incident occurred at Philadelphia’s Coming Out Day Celebration, held in a public place, to which Philadelphia taxpayers are forced to contribute $10,000 annually. The “celebration” was picketed by 11 members of a group called Repent America.

These desperate characters, ranging in age from 17 to 72 (the youngest and oldest were women) did no more than peacefully protest. They weren’t disruptive. They didn’t attempt to block access to the event.

There was no physical contact between the protestors and those attending the event. One demonstrator held a sign that read “Truth is hateful to those who hate truth” – not exactly a lynch mob.

The protestors were themselves harassed by a group called the Pink Angels, who screamed obscenities, blew whistles and held large pink signs in front of them to block their messages.

The police did not interfere with the counter-demonstrators. Instead, they arrested the Christians, a number of whom were charged under Pennsylvania’s hate-crimes law called “Ethnic Intimidation.”

The Philadelphia District Attorney – who fairly salivated at the prospect of having these miscreants drawn and quartered – got really creative.

The defendants were charged with a number of felonies and misdemeanors, including the aforesaid “ethnic intimidation,” criminal conspiracy, possession of instruments of crime (it’s unclear whether those were placards or Bibles), reckless endangerment, riot, failure to disperse and disorderly conduct. The D.A. inexplicably overlooked kidnapping, forgery, and jaywalking.

If convicted on all counts, each of the defendants could have been sentenced 47 years in prison and $90,000 in fines.

On February 17, 2005, Judge Pamela Dembe, of the Court of Common Pleas for the City of Philadelphia, dismissed all charges against the remaining defendants. After viewing a videotape of the incident which led to the arrests, Judge Dembe announced: “It is clear that there was no violence. There were no threats.”

That’s interesting. The judge said the case was without merit, but the police insisted on arresting the protestors and the district attorney insisted on treating them as the homophobic equivalent of a combo Klan rally, cross-burning, and lynching.

In granting the defendants’ motion to dismiss, the judge remarked: “That which is unpopular now, may not always remain so. We can not stifle free speech because some don’t want to hear it – or don’t want to hear it now.”

The prosecution of hate crimes often results in unequal enforcement.

Compare the treatment of the Philadelphia 11 with those participating in a Boston demonstration, on October 29, 2005.

A mob of almost 1,000 left an anti-war rally and descended on Boston’s Tremont Temple Baptist Church, where a “Love Won Out” conference was taking place, which included testimony by ex-homosexuals. The demonstrators shouted obscenities and threats of violence and brought a sound truck which was parked near the front doors, blaring the message “Shut it down. Shut it down!”

Do you think those inside the church might reasonably have felt intimidated? Regardless, the police took no action. Apparently, the Boston demonstration was motivated by love and esteem, rather than hate.

When it comes to criminalizing speech, many states are way ahead of the feds.

New Jersey has a law that makes it a hate crime “to communicate in a manner likely to cause alarm or annoyance. ” Can you believe it, there are people so depraved that they intentionally cause alarm or annoyance? – the fiends!

In Washington state, it’s a crime to “Threaten a specific person or groups of persons and place that person…in reasonable fear of harm to person or property.” What is “a reasonable fear of harm”? The law states “For purposes of this section, a ‘reasonable person,’ is a member of the victim’s group.” Thus, if a “reasonable member” of the group in question happens to be paranoid, hyper-sensitive or vindictive, and feels “threatened” by any almost sign of disapproval, well, you’d better not raise an eyebrow at them.

Just how far the You-Should-Be-Silenced-Because-I-Feel-Threatened standard can be taken may be seen in an incident that occurred at Ohio State University’s Mansfield campus in 2006.

Librarian Scott Savage was concerned about the political imbalance in suggested freshman reading. In an effort to correct this, Savage recommended that freshman read four conservative books – The Marketing of Evil by David Kupelian, The Professors by David Horowitz, Eurabia: the Euro-Arab Axis by Bat Ye’or and (perhaps most shocking of all) It Takes a Family by then-United States Senator Rick Santorum.

This blatant attack on the sensibilities of the academic community – recommending conservative books – caused three professors to complain that they felt “unsafe” on campus. One wonders what horrifying scenarios ran through their fevered imaginations: Perhaps they feared the savage beast of the Dewey Decimal System would follow them around campus reading passages from the menacing books.

Given the mindset that dominates academia, it probably should come as no surprise that the entire faculty voted to file charges of sex-discrimination and harassment against Savage for (as their complaint put it) “anti-gay hate-mongering” – all for recommending four books.

It’s a wonder that the librarian’s detractors didn’t don armbands, build a bonfire and march around it, consigning arm-loads of conservative books to the flames. Surely, that would have made them feel safer on campus.

When this insanity came to the notice of the non-academic community, the charges against Savage were quietly dropped.

Still, when it comes to censorship, our neighbors to the north and those ultra-sophisticated Europeans are way ahead of us.

Canada’s Human Rights Act was originally intended to ensure “equal opportunity” to individuals who might be victims of discriminatory practices. The law, which sets up a Human Rights Commission to investigate complaints and a Human Rights Tribunal to judge them, has spawned a plethora of provincial equivalents.

The law keeps morphing, so that now discrimination includes hurting the feelings of a victim group. The Human Rights Commissions are usually manned by what a writer on called “a banal, clerical bureaucrat.” Canadian Human Rights Tribunals are the hate-crimes equivalent of the Spanish Inquisition, without the ambience.

In 2001, Hugh Owens, a resident of Saskatchewan, published a small ad in a local newspaper which was illustrated with two stick-figure men holding hands in a circle with a line drawn though it. The ad included a few Bible verses. The Saskatchewan Human Rights Tribunal ordered Owens and the newspaper to pay $4,500 to three homosexuals who were traumatized and scarred for life by the stick-figure men.

On New Year’s Day 2004, two plainclothes policemen showed up at the home of Canadian Internet journalist Robert Jason to investigate a possible hate crime after a gay activist complained that he was personally threatened by Jason’s pro-family website. Can anyone say “chilling effect”?

In 2006, well-known columnist Mark Steyn wrote a book called America Alone: The End of The World As We Know It. Macleans, Canada’s largest-circulation magazine, published an excerpt that it titled “The Future Belongs To Islam.” That’s when the hummus really hit the fan.

A Canadian Muslim group claimed that both Steyn and Maclean’s had violated Canada’s anti-discrimination/don’t-hurt- anyone’s-feelings law, by misrepresenting “Canadian Muslims’ values, their community and their religion.” Misrepresenting the Muslim faith, would that be like saying that Islam is a religion of peace?

Maclean’s lawyer, Roger McConchie, observed that according to Canada’s anti-discrimination law (hate crimes detached from actual crimes): “Innocent intent is not a defense. Nor is truth. Nor is true comment on fair facts. Publication in the public interest and for the public benefit is not a defense. Opinion expressed in good faith is not a defense. Responsible journalism is not a defense.”

Star Chamber proceedings against Steyn and Maclean’s eventually ended, when even some liberals started complaining about the absurdity of it all.

On the liberal website, on January 13, 2008, Glenn Greenwald (an author and civil rights litigator who loathes conservative views, including Steyn’s work, which he calls “pernicious”) wrote: “Empowering the State to punish speech is not only the most dangerous step a society can take – though it is that – it’s also the most senseless. It never achieves the intended effect of suppressing or eliminating a particular view. If anything, it has the opposite effect, by driving it underground, thus preventing debate and exposure.”

Punishing speech is the objective of American hate-crimes laws, which currently punish views that motivate actions, but which could soon penalize words alone

The Dutch are reputed to be the quintessence of tolerance. They’ve legalized soft drugs, prostitution, euthanasia and same-sex marriage. It’s even legal to have gay sex in Amsterdam’s public parks.

But when Dutch tolerance meets political correctness, in the words of the Johnny Mercer song, “somethin’s gotta give.” That something is freedom of expression.

In January, a Dutch appeals court ordered Geert Wilders to stand trial for making a movie. The court directed prosecutors to charge him with “inciting hatred and discrimination against Muslims.”

A member of the Dutch parliament, Wilders made a 10-minute documentary called Fitna (viewed millions of times on YouTube) which consists mostly of verses from the Koran, that Wilders says incite violence and death to infidels.

The court’s ruling comes six months after Dutch prosecutors announced that Wilder’s film contributed to the public debate on Islam and that the parliamentarian had committed no criminal offense.

Now, Wilders will stand trial for trying to further the debate on a subject about which, the Left has announced, the debate is closed.

The Organization of the Islamic Conference, which represents nations where minority rights are scrupulously respected (just kidding), admonishes that there is a “thin line separating freedom of speech and the instigation of hatred, animosity and discrimination.” The attitude seems to be: We can say it, but if you quote us, that’s Islamophobia.

Jordan, an OIC member-state in good standing, is demanding Wilders’ extradition to stand trial for the crime of “blasphemy of Islam,” which, under Shari’a law, is punishable by death.

By the way, at different times, various imams, sheiks and mullahs have told us that cartoons depicting Mohammed and the Pope quoting a 14th. century Byzantine emperor are also blasphemy of Islam – hence the 2006 demonstrations calling for the pontiff’s death.

On January 28, 2009, Egyptian cleric Ahmad Abd Al-Salam spoke on Al-Nas TV, a religious channel broadcasting in Arabic.

His remarks were simply titled “Why We Hate the Jews,” and contained such lunatic ravings as – The Jews “invest their utmost efforts… in conspiring how to corrupt the Islamic Nation… This is why we hate them.” Also, the Jews “infect food with cancer and ship it to Muslim countries.” And “The Jews conspire to bring Muslim youth down to the pit of sexual temptation.”

Such rancid rhetoric is heard daily in the Arab media.

Here’s an example closer to home. During the Gaza fighting, the ANSWER (Act Now to Stop War and End Racism) Coalition held an anti-Israel rally in Fort Lauderdale, Fla. There were at least 200 in the ANSWER crowd, and a much smaller group of Jewish counter-demonstrators.

At one point, a woman in a traditional Muslim headdress began cursing the Jews, and shouting: “Go back to the oven” and “You need a big oven, that’s what you need” – in reference to the millions of Jews who were cremated by the Nazis during World War II.

Does this qualify as a hate crime? What if the crude anti-Semite made a threatening gesture toward the Jewish activists? What if the Jews had reasonable cause to feel threatened by the much larger pro-Palestinian crowd?

After calling for a resumption of the Holocaust, if the woman had hit one of the Jews over the head with a picket sign, should she be charged with assault or with a more serious hate crime?

Many evangelicals rightly fear that hate-crimes laws will be used against Christians here, as they are in Europe, to punish preaching the Gospel.

Take the case of Swedish Pastor Ake Green. Sweden is one of the European free-speech meccas where speech alone is punished, providing it’s hateful and that those offended can claim victim status.

Green, an evangelical pastor from southern Sweden, was sentenced to a month in jail for a 2003 sermon “inciting hatred.” The pastor had his sermon, citing Scripture on homosexuality, published in a local newspaper.

In it, he compared Sweden to a biblical city that experienced instant urban renewal, but ended with the words, “What these people need, who live under the slavery of sexual immorality, is an abundant grace…We can not condemn these people. Jesus never belittled anyone. He offered them grace.”

In demanding that charges be brought against Green, a spokesman for Sweden’s national gay and lesbian organization insisted: “Hatred and defamation is not accepted, just because it is based on religious beliefs or religious scriptures. You have some limits when it comes to freedom of speech.” In Europe, limits on freedom of expression abound.

Britain’s High Court ruled that Harry Hammond, a 69-year-old evangelical, was properly convicted for holding a protest sign that read “Stop Immorality. Stop Homosexuality. Stop Lesbianism,” notwithstanding that, while he was protesting peacefully, he was assaulted by onlookers (dirt was thrown at him, water poured over his head, someone tried to wrest his sign away, and he was knocked to the ground). Hammond was fined 330 pounds and ordered to pay 395 pounds in court costs.

The Anglican Bishop of Chester, Dr. Peter Forester, was investigated by police for saying that homosexuals “could and should seek medical help to reorient themselves.”

A columnist for the London Telegraph wrote: “That the bishop should be threatened with prosecution for a perfectly reasonable, if debatable, suggestion will strike people still in their senses as a bad joke, a case of…’political correctness gone mad.’ Unfortunately, it is much more serious than that. Here are the unmistakable beginnings of state thought control.”

When he was tried, the prosecutor asked Pastor Green if he would retract his previously stated views. The pastor said he was following the Bible. To this the prosecutor replied, “Then get another Bible.” You see how easy it is. If your Bible offends the prevailing cultural ethos, find one that doesn’t.

Pastor Ake’s Green conviction was overturned by Sweden’s high court, when his lawyers threatened to take the case to the European Court for Human Rights.

Easily the most hilarious example of hate speech careening out of control was a controversy in the Disunited Kingdom in 2006.

In an interview on BBC Radio 4, Sir Iqbal Sacranie, secretary general of the Muslim Council of Great Britain, said civil partnerships are “harmful” and “not acceptable.” He too was investigated by the police, who declined to press charges.

A British gay group charged Sir Iqbal with homophobia. This caused the Muslim Council to charge the gays with – you guessed it — Islamaphobia. “You hate me!” “No, you hate me more!” Dueling phobias.

I could cite other cases, in Canada and Europe, where individuals have suffered for what they’ve said in public, on the air, in a letter-to-the-editor or with a protest sign.

This is where American hate-crimes laws will eventually lead.

It shouldn’t be necessary to say this, but obviously no one should be assaulted, robbed, raped, or killed for their race, religion, ethnicity, sex, or lifestyle. Such crimes are abhorrent and condemned by all decent people.

If you think the penalties for these offenses aren’t tough enough, by all means, work to make them more stringent.

But don’t criminalize speech. Punish the act itself, not the ideas behind it, even ideas you find abhorrent.

For the record, I would not punish the Philadelphia 11, or Mark Steyn, or Pastor Ake Green or the Nazi-sympathizer in Fort Lauderdale, or the Egyptian cleric who claimed Jews infect the food shipped to Muslim countries and conspire to sexually tempt their youth.

Nor would I punish the contemptible cretins who deny that the Holocaust happened – which, by the way, is a crime in Canada, Germany, and France.

“I may not agree with what you say, but I will defend to the death your right to say it.” That quote, usually attributed to Voltaire, has become a cliché.

Yet it represents 19th century liberalism at its best – the idea that if one man is censored, the freedom of all men is diminished.

Some in this audience may think that those who commit hate crimes are evil, and deserve to be punished more severely than ordinary criminals for the same act.

Some may have no problem with the premise that speech alone should be actionable. If what’s said offends them, makes them feel “unsafe,” calls their conduct into question, or passes judgment on them, they believe it should be silenced

Be careful, the principle you establish today could come back to haunt you. Thought crimes – which hate crimes manifestly are – is the proverbial double-edged sword.

Recall that it wasn’t all that long ago that to step across the race line was a crime in certain states.

Bull Connor, the public safety commissioner of Birmingham, Alabama, in the early ’60s, felt so intimidated by civil rights demonstrators that he used fire hoses and attack dogs against them. One of the arguments white Southerners used to fight for Jim Crow was that integration would make them feel unsafe.

Ultimately, safety for minorities – as well as the rest of us – not to mention the survival of free speech, lies in the unfettered marketplace of ideas.

About Eeyore

Canadian artist and counter-jihad and freedom of speech activist as well as devout Schrödinger's catholic

Leave a Reply

Your email address will not be published.